McKenzie v. Moore

• Decision Date: 14 December 1918
• Docket Number: Civil 1583
• Parties: E. W. McKENZIE, Appellant, v. C. W. MOORE, Appellee
• Court: Arizona Supreme Court

176 P. 568

20 Ariz. 1

E. W. McKENZIE, Appellant, v. C. W. MOORE, Appellee

Civil No. 1583

Supreme Court of Arizona

December 14, 1918

APPEAL from a judgment of the Superior Court of the County of Cochise. Alfred C. Lockwood, Judge. Affirmed.

STATEMENT OF FACTS BY THE COURT.

This action was commenced to restrain acts of trespass alleged to have been committed and threatened by the appellee on appellant's Stockton mining location, and to recover damages for trespasses already committed. The plaintiff pleads ownership acquired by the valid location of a mining claim pursuant to the mining laws of the United States and of the state of Arizona, and continued possession of the premises covered by such alleged mining claim. The defendant disclaims all estate in the said premises except a prior water right acquired by him by means of appropriating the waters of Midway Spring, a spring arising from the ground within the limits of said mining location. The defendant denies plaintiff's right to possession of the premises alleging that plaintiff's location is invalid because the ground attempted to be located as a mining claim is nonmineral in character, and plaintiff has not discovered mineral within the premises as required by law. Defendant denies all alleged acts of trespass and damages. The plaintiff replied, reasserting his (plaintiff's) actual possession of the premises and his right to possession based upon a valid mineral location. The cause was tried before the court, a jury having been waived. The court filed a statement of facts found and conclusions of law, and rendered judgment dismissing the action and awarding costs to the defendant. From such judgment and an order refusing a new trial plaintiff appeals.

Mr. J T. Kingsbury, for Appellant.

Mr Harry E. Pickett, for Appellee.

OPINION

CUNNINGHAM, C. J.

(After Stating the Facts as Above). Without any doubt, the law is that a mineral location to be valid for any purpose must be made upon unappropriated government land open to location, in which mineral has actually been discovered in place. Until the actual discovery of mineral in place, all acts tending to consummate a valid mineral location give the locator no right other than the right to continue a reasonable search for mineral. The time given by the local statute of this state within which the location is required to be completed is limited to ninety days after the discovery of mineral on the ground (paragraph 4030, Rev. Stats. Ariz. 1913), in any event, and such additional time until conflicting rights intervene. The unquestionable right of the locator to the possession of the area within the boundaries of the claim marked on the ground by the requisite monuments as described in the location notice posted at the location monument carries the right to possession of every appurtenant belonging to the realty, including timber, soil, country rock, percolating waters, natural springs, except certain mineral springs and other things not material to this discussion. Hence, whenever the locator's exclusive right to possession of the premises with its appurtenances ceases, either by reason of his failure to perform all of the acts requisite to a complete mineral location, for instance, his failure to discover mineral in place in the ground being located within ninety days after his location was initiated, thereafter his exclusive right to possession based upon a mineral is at an end, and he is thereafter holding possession of the public lands by the sufferance of the sovereign owner. The possession so held is subject to be terminated by the government, or by any citizen of the United States qualified to acquire title to public lands, without notice, simply by initiating a claim to the same premises under some law of Congress authorizing the disposition of public lands. But until the government intervenes, or some qualified citizen of the United States initiates a better claim to the possession of the premises located, the locator cannot be disturbed in his actual possession. Of course, boundary lines of a mining claim, as marked on the ground after the locator's failure to complete his location for any cause, are no evidence of a right to possession nor of the extent of the locator's possession. The court has found from conflicting evidence that the plaintiff failed to complete the valid location of a mining claim, by reason of his failure to discover mineral in the claim. The record contains substantial evidence in support of that finding, and therefore this court will not disturb the finding. Such conclusion is not necessarily decisive of this case, for the reason the defendant is without right to question the plaintiff's actual occupancy of public lands until defendant has acquired some individual interest therein. The interest claimed by the defendant and relied upon to defeat plaintiff's claim is based upon an alleged location made by him of a water right, initiated at a time subsequent to the time of the expiration of plaintiff's period for completing his mineral location, and in form complying with the requirements of chapter 1 of title 55, Revised Statutes of Arizona of 1913, as to posting of notices, purposes, etc. The court has found from substantial evidence that defendant substantially performed all the acts of location and appropriation of a...